Issues concerning libraries and the law - with latitude to discuss any other interesting issues Note: Not legal advice - just a dangerous mix of thoughts and information. Brought to you by Mary Minow, J.D., A.M.L.S. [California, U.S.] and Peter Hirtle, M.A., M.L.S. Follow us on twitter @librarylaw

The California Library Association (CLA) has just announced a
resolution calling on Congress to dramatically revise the
up-for-renewal USA PATRIOT Act, passed hurriedly in the weeks following
the 9/11 attacks.

CLA's resolution calls for Congress to allow Section 215 to sunset, to
amend Section 505 to "include a clear exemption for library records,"
and in general to intensify Congressional oversight of the use of the
Act.

"In the coming months the national debate about the PATRIOT Act
will heat up once again..... the whole of the progressive community
must take coordinated action to reverse the PATRIOT Act and
reinvigorate public conversation."

I've prepared two charts. One showsthe law regarding section 215 orders before the PATRIOT Act, after the PATRIOT Act, and after the Reauthorization Act. The second chart does the same for national security letters.Each chart briefly describes the records that can be requested, the standard to issue the order or letter, the requirements for any gag order, the review process, if any, any special llbrary sections, and the status of any sunset provisions.

I just put the final draft of a new paper on SSRN. The paper re-assesses the Patriot Act provisions that affect libraries now that some parts of the Patriot Act have been legislatively revised, judicially interpreted, or audited for compliance. The paper is called The Chains of the Constitution and Legal Process in the Library: A Post-Patriot Reauthorization Act Assessment. If it gets published, I'm going to dedicate the paper to Lee Strickland, whose work was so helpful in drafting the paper, and who was a great friend of libraries.

The "chains of the Constitution" is a concept Thomas Jefferson came up with, as a metaphor for limiting the power of the governing class:

In questions of power, then, let no more be heard ofconfidence in man, but bind him down from mischiefby the chains of the
Constitution.

Here's the abstract of the paper:

Since the Patriot Act was
passed in 2001, controversy has raged over nearly every provision. The
controversy has been particularly intense over provisions that affect
the patrons of libraries. This article follows those Patriot Act
provisions that affect libraries, and reviews how they have been
interpreted, how the Patriot Reauthorization Acts have changed them,
and what government audits and court affidavits reveal about the use
and misuse of the Patriot Act. The efforts of librarians and others
opposed to the Patriot Act have had an effect, both legislatively and
judicially, in changing and challenging the Patriot Act. Because
libraries are such a potent symbol of democratic openness, the effect
of the Patriot Act on libraries has acted in the public mind as a
microcosm of the broader problems with the implementation of the
Patriot Act. The public's discomfort with the civil liberties
implications of the Patriot Act has turned out to be justified, as
every agency that has reviewed the implementation of the Patriot Act
has concluded that the government has not been able to maintain an
appropriate balance between the need to protect civil liberties and the
need to prevent terrorist acts. The government's list of domestic
terrorist acts that have been prevented or punished is not inspiring:
the entire panoply of tools authorized by the Patriot Act has not done
much more than stop some home-grown right wing fringe groups and
ecoterrorists. In light of the evidence of abuse of civil liberties and
the questionable constitutionality of many of the Patriot Act's
provisions, this paper suggests that the time for vigorous advocacy has
not passed and that further legislative changes need to be made.

The paper is available at SSRN: http://ssrn.com/abstract=1105448. That link takes you to the abstract, and if you scroll down, you can find a link to download the paper.

At the 2007 ALA Annual Conference in Washington, D.C., the ALA Council unanimously adopted a Resolution on the Use and Abuse of National Security Letters. To date, 14 state library associations have endorsed the ALA resolution: Arizona, Arkansas, Colorado, Connecticut, Georgia, Indiana, Maine, Massachusetts, Minnesota, Missouri, North Carolina, Ohio, Rhode Island, and Vermont.

I thought I saw Lee Strickland out of the corner of my eye last week, a couple of times at the American Library Association conference in D.C. last week.

I know he was there, smiling, saying “I told you so,” when Foreign Intelligence Court Judge Royce Lamberth blasted the administration’s use of warrantless wiretaps. Lee was the only library school professor I know who had been a long time Senior Intelligence Officer for the CIA.

I called him years ago to ask about national security letters (NSLs), and he told me that if a library came to him with one, he’d likely recommend the library challenge it. So he would have been proud to hear Peter Chase and Barbara Bailey speak at the ALA conference June 24th, as they described their journey to do just that. They were served an NSL by the FBI, and told that they couldn’t tell anyone besides their lawyer about it. Not their colleagues, their staffs, not their families. They were not willing to turn over records without a court order, and they weren’t willing to stay gagged for eternity about their experience, particularly since Patriot Act Reauthorization hearings were happening, and people were saying that the FBI did not ask for library records.

Lee taught librarians about the inner workings of intelligence orders, and hopefully his teachings and writings helped the librarians and their lawyers in this ultimately successful quest.

Lee wrote many many other articles on intelligence information, all a great contribution to the library community. I’m sad as can be that his voice is gone, especially now when we need his inside experience and generous spirit more than ever.

I have had the pleasure over the past week to meet Karen (by email) and it’s an honor to correspond with her.

Let me offer this small tribute to a great man, who had an unusual combination of CIA experience, love of libraries, love of freedom and civil liberties, and a dedication to teach us all about all arenas.

To Lee, thank you.

p.s. I happened to visit the U.S. Copyright Office while I was in D.C., and my eyes fell on the catalog drawers holding copyright registrations from the years 1971 to 1977. Oddly, the alphabet broke right between K. Strickland and L. Strickland. I took a photo of a card inside that had Lee’s name, but now I can’t make out the title of the registration. Can any of you readers make it out? Or if someone works at the Library of Congress or Copyright Office, maybe you could take a look and leave a comment here.

As I suspected, it's much easier and more flexible. So if any of you are looking for new posts based on categories, you may not find them. Use the technorati tags at the bottom of a post instead. If it works like I think it will, I'll probably stop using categories altogether.

Update: It looks as if users who click on a technorati tag below will get everyone in the world's posts with those tags. That's useful, but it would be nice to have an option to limit it to this blog, the way flickr does. Well, there's always the search button in the blog...